Supreme Court 

No. 2018-233-M.P. 

 

Jared Starnino :

v. :

Employees’ Retirement System of 

the City of Providence.

: 

NOTICE: This opinion is subject to formal revision 

before publication in the Rhode Island Reporter. Readers 

are requested to notify the Opinion Analyst, Supreme 

Court of Rhode Island, 250 Benefit Street, Providence, 

Rhode Island 02903, at Telephone (401) 222-3258 or 

Email opinionanalyst@courts.ri.gov, of any typographical 

or other formal errors in order that corrections may be 

made before the opinion is published. 

 

February 5, 2021
- 1 - 

 

Supreme Court 

No. 2018-233-M.P. 

(Dissent begins on Page 15) 

 

Jared Starnino :

v. :

Employees’ Retirement System of 

the City of Providence.

: 

Present: Suttell, C.J., Flaherty, and Robinson, JJ. 

O P I N I O N 

Justice Robinson, for the Court. On August 14, 2018, Jared Starnino 

petitioned this Court for the issuance of a writ of certiorari to review a July 25, 2018 

decision of the Retirement Board of the Employees’ Retirement System of the City 

of Providence (the Board) denying his application for an accidental disability 

retirement. This Court granted his petition on April 29, 2019. He contends before 

this Court that, “[e]ven the most deferential review reveals that the Board virtually 

ignored and failed to reason over the legally competent evidence before it” when it 

denied his application for an accidental disability retirement. 

This case came before the Supreme Court pursuant to an order directing the 

parties to appear and show cause why the issues raised in this case should not be 
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summarily decided. After a close review of the record and careful consideration of 

the parties’ arguments (both written and oral), we are satisfied that cause has not 

been shown and that this case may be decided at this time. 

For the reasons set forth in this opinion, we affirm the decision of the Board. 

I 

Facts and Travel 

 The facts forming the basis of this case are not a subject of debate between 

the parties. In relating those facts, we rely on the decision of the Board as well as 

other documents in the record. 

 At all times relevant to this case, Mr. Starnino was a firefighter with the City 

of Providence. On June 24, 2014, in carrying out his work-related duties, Mr. 

Starnino injured his right shoulder while lifting a patient. After he had recovered 

from that injury, he eventually returned to full duty. Then, on August 3, 2015, he 

sustained a second injury to his right shoulder while transferring a patient from a 

stretcher. According to the Board’s decision, on November 12, 2015, Mr. Starnino’s 

treating physician, Jonathan Gastel, M.D., performed a “right shoulder arthroscopy 

with SLAP repair and anterior capsulorrhaphy as well as repair of partial thickness 

rotator cuff tear.” Ultimately, however, on September 28, 2016, a Functional 

Capacity Evaluation (FCE) was performed at the request of Dr. Gastel; that 

evaluation concluded that Mr. Starnino could not return to working full duty. 
- 3 - 

Accordingly, on January 8, 2017, Mr. Starnino submitted an application for an 

accidental disability retirement on the basis of his continuing shoulder injury. 

 Subsequent to filing his application for an accidental disability retirement, Mr. 

Starnino underwent three independent medical examinations, as required by the 

applicable ordinance. 

On May 30, 2017, Mr. Starnino underwent an examination conducted by A. 

Louis Mariorenzi, M.D. Doctor Mariorenzi produced a report, dated June 5, 2017, 

in which he concluded, to a reasonable degree of medical certainty, that “because of 

the restricted motion to the shoulder,” Mr. Starnino would “have difficulty returning 

to all duties as a firefighter.” He added that Mr. Starnino was not totally disabled 

from any “gainful employment” but was “partially disabled, unable to return to his 

employment as a firefighter.” He then stated the following: “[B]ased upon his 

present physical findings and the medical records available to me, there is a 

probability that with routine everyday use of this arm that motion will continue to 

improve and may within the next 2 years return to normal which would then allow 

this individual to return to his usual employment as a firefighter.” It was Dr. 

Mariorenzi’s recommendation that Mr. Starnino be considered partially disabled and 

be reevaluated in two years. 
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On the “Accidental Disability Questionnaire” filled out by Dr. Mariorenzi, he 

opined that Mr. Starnino’s incapacity was the natural and proximate result of his 

injury sustained while performing his duties as a firefighter. 

On June 26, 2017, Mr. Starnino underwent an examination by Michael P. 

Bradley, M.D. Doctor Bradley opined, in a report dated September 5, 2017, that, 

without further surgery, Mr. Starnino “ha[d] really undergone a maximal medical 

improvement.” He stated that “under his current course of treatment, I do not think 

he could continue working based on the job description provided for him as a rescue 

technician for the Providence Fire Department.” Doctor Bradley also noted that he 

had reviewed the FCE and that it was “quite detailed in nature * * *.” Additionally, 

he stated that Mr. Starnino’s right arm was “certainly less functional than normal.” 

He then concluded that, “[u]nless further surgery is considered,” Mr. Starnino 

“should be referred for his Accidental Disability Retirement * * *.” 

On the “Accidental Disability Questionnaire” filled out by Dr. Bradley, he 

stated that, to a “medical degree of certainty,” without further surgery, Mr. Starnino 

would not be able to return to his job and that, at that time, his disability was 

permanent. He further opined therein that Mr. Starnino’s incapacity was the natural 

and proximate result of his injury sustained while performing his duties as a 

firefighter. 
- 5 - 

On August 15, 2017, Mr. Starnino underwent a medical examination 

conducted by Joseph T. Lifrak, M.D. Doctor Lifrak produced a report based on that 

examination, and he specifically stated that his report was given to a reasonable 

degree of medical certainty. Doctor Lifrak opined that Mr. Starnino had “subjective 

complaints, although no objective findings on MRI arthrogram of any pathology as 

well as only mild restrictions in range of motion * * *.” He then stated that Mr. 

Starnino could “work full duty as a firefighter without being injurious to his 

health * * *.” Doctor Lifrak then added the following statement: 

“[H]owever, functional capacity evaluation done in 

September 2016, states that he does not meet the criteria 

and guidelines to meet full duty requirements. Therefore 

although I feel he can work full duty, the functional 

capacity evaluation is contrary to this and based on the 

functional capacity evaluation, [Mr. Starnino] cannot 

work full duty without being injurious to his health. * * * 

Based on the functional capacity evaluation, [Mr. 

Starnino] would have the restrictions as outlined * * * in 

the functional capacity evaluation report.” 

On the “Accidental Disability Questionnaire” filled out by Dr. Lifrak, he opined that 

Mr. Starnino’s disability was permanent and was the natural and proximate result of 

his injury sustained while performing his duties as a firefighter. 

In a February 13, 2017 letter to Mr. Starnino’s counsel, Mr. Starnino’s treating 

physician, Dr. Gastel, opined that Mr. Starnino was “at a point of Maximal Medical 

Improvement” without further surgery. He added that Mr. Starnino was 

“incapacitated from full performance of his duties as a fire fighter/emergency 
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technician.” Doctor Gastel explained that he had relied on the FCE in part in 

reaching his conclusion, and he stated that an FCE report was a report that would be 

“reasonably relied upon, * * * in [his] opinion.” He also stated that his opinions 

were based on his “highest degree of medical certainty.” 

Mr. Starnino’s application for an accidental disability retirement came before 

the Board for the first time on January 24, 2018. In the course of that hearing, Mr. 

Starnino was asked if he had ever had a prior right shoulder injury, to which he 

responded: “[M]aybe in college” “thirteen, fourteen years ago.” The matter was 

continued so that the Board might attempt to obtain some additional information. 

Mr. Starnino’s application was then further considered by the Board on April 25, 

2018, at which time the Board voted to deny his application. 

On July 25, 2018, the Board issued a written decision. The Board’s decision 

included findings of fact, which detailed the evaluations of Mr. Starnino conducted 

by all three independent medical examiners. It then set forth the entirety of the 

applicable ordinance—§ 17-189(f)1 of the Providence Code of Ordinances—before 

deciding that “[t]he legally competent evidence provided does not establish that 

 

1

 We continue, as we did in Prew v. Employee Retirement System of City of 

Providence, 139 A.3d 556 (R.I. 2016), and Trinidad v. Employees’ Retirement 

System of Providence, 206 A.3d 700 (R.I. 2019), to refer to this ordinance section as 

§ 17-189(f) rather than § 17-189(6). There is no substantive difference between the 

two. For a more detailed discussion of this citation issue, we refer the interested 

reader to this Court’s opinions in Prew, 139 A.3d at 560 n.3, and Trinidad, 206 A.3d 

at 705 n.5. 
- 7 - 

[Mr.] Starnino is ‘incapacitated for the performance of duty and ought to be retired’ 

pursuant to [the] ordinance.” The decision went on to state that the record showed 

that Mr. Starnino was “incapacitated as a Firefighter because of subjective 

complaints without objective findings.” It then relied specifically on Dr. Lifrak’s 

conclusion that Mr. Starnino could perform full duty work as a firefighter; it further 

relied upon Dr. Lifrak’s comments with respect to Mr. Starnino’s complaints being 

subjective, without objective findings; and it also referenced Dr. Lifrak’s mention of 

the mild restrictions to Mr. Starnino’s range of motion. The Board “discounted the 

functional capacity evaluation because it was performed almost two years prior in 

2016.” Finally, the Board noted that “Mr. Starnino testified that he originally injured 

his right shoulder in college but was unable to provide the Board with any 

information as to medical records or treatment for said injury.” For these reasons, 

the Board denied Mr. Starnino’s application for an accidental disability retirement. 

On August 14, 2018, Mr. Starnino petitioned this Court for the issuance of a 

writ of certiorari to review the Board’s decision. This Court granted his petition on 

April 29, 2019. 

II 

Standard of Review 

Decisions of the Board are reviewed by this Court pursuant to the issuance of 

a writ of certiorari. See Rule 13(a) of Article I of the Supreme Court Rules of 
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Appellate Procedure. In reviewing the decision of the Board pursuant to a writ of 

certiorari, “our task is to discern whether any legally competent evidence supports 

the lower tribunal’s decision and whether the decision-maker committed any 

reversible errors of law in the matter under review.” Trinidad v. Employees’ 

Retirement System of Providence, 206 A.3d 700, 704 (R.I. 2019) (internal quotation 

marks omitted). We have stated that it is our duty to “scrutinize the record to 

determine whether the board’s decision is supported by any legally competent 

evidence * * *.” Prew v. Employee Retirement System of City of Providence, 139 

A.3d 556, 559 (R.I. 2016) (internal quotation marks omitted). We have further 

consistently held that “in our review for legally competent evidence we look for 

some or any evidence supporting the agency’s findings.” Trinidad, 206 A.3d at 704 

(internal quotation marks omitted); see Morse v. Employees Retirement System of 

City of Providence, 139 A.3d 385, 390-91 (R.I. 2016); Pierce v. Providence 

Retirement Board, 15 A.3d 957, 961 (R.I. 2011); Auto Body Association of Rhode 

Island v. State Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010); see 

also Foster-Glocester Regional School Committee v. Board of Review, 854 A.2d 

1008, 1012 (R.I. 2004) (“Legally competent evidence is defined as such relevant 

evidence that a reasonable mind might accept as adequate to support a conclusion, 
- 9 - 

and means an amount more than a scintilla but less than a preponderance.”) (internal 

quotation marks omitted). 

We review questions of law de novo, and we have stated that “[i]f an error of 

law is found, it must so infect the validity of the proceedings as to warrant reversal.” 

Trinidad, 206 A.3d at 704 (internal quotation marks omitted); see also Morse, 139 

A.3d at 391. As such, “if the board did not lack competent facts supporting its 

decision and did not commit legal errors infecting the validity of the proceedings, 

this Court will affirm its decision.” Trinidad, 206 A.3d at 704 (internal quotation 

marks omitted). 

III 

Analysis 

 Mr. Starnino represents to this Court that “all physicians unanimously agreed 

that petitioner was incapable of performing his full duties as a result of his on-thejob injury * * *.” (Emphasis in original.) He further posits that the Board 

improperly neglected to explain why it discounted the FCE report and that the FCE 

was not “almost two years old” but rather was only approximately sixteen months 

old at the time of the first hearing before the Board in January of 2018. He further 

contends that the Board either should have found as a fact that Mr. Starnino was at 

a “medical end point” or should have explained how the Board could conclude that 

he was not. He adds that, “[i]f the Board found [Mr.] Starnino to be at [Maximum 
- 10 - 

Medical Improvement] as it should have on this record, there would be no reason to 

‘discount’ the results of the FCE, because the evidence shows [Mr.] Starnino’s 

medical condition was not likely to improve * * *.” Lastly, Mr. Starnino argues that 

the Board mentioned his previous injury that he told the Board may have taken place 

when he was in college but “noticeably absent is any meaningful discussion of the 

significance, if any, of this 13 year old incident * * *.” He avers that the 

“Board * * * shoveled aside the legally competent evidence to look for straws it 

might grasp to reach [its] desired result * * *.”2

 Thus, the question presented to this Court is whether or not legally competent 

evidence existed to support the Board’s denial of Mr. Starnino’s application for an 

accidental disability retirement. 

 There are three different avenues to receive retirement benefits from the City 

of Providence: a service retirement, an ordinary disability retirement, and an 

accidental disability retirement. Morse, 139 A.3d at 391. “The sole difference 

between accidental and ordinary benefits is the manner in which an employee 

becomes disabled, which accounts for the difference in compensation.” Trinidad, 

206 A.3d at 704-05 (internal quotation marks omitted). The retirement system 

 

2

 Mr. Starnino focuses much of his argument before this Court on Dr. 

Mariorenzi’s opinion that there was a probability that his shoulder injury would 

improve in two years. However, the Board did not rely on that statement by Dr. 

Mariorenzi in its written decision, nor do we rely on that statement in reaching our 

decision to affirm. 
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provides greater benefits to those injured on the job in the form of the accidental 

disability retirement. Id. at 705. As such, “entitlement to accidental-disability 

retirement’s greater benefits requires a member to meet criteria that are more 

discriminating than the other * * * retirement options.” Id. (internal quotation marks 

omitted). Section 17-189(f) details the requirements for an accidental disability 

retirement, including the timeline for filing an application and the requirement that 

the applicant submit to three independent medical examinations. We have 

summarized the requirements of the ordinance as follows: 

“The examinations, along with any additional 

investigation undertaken by the city’s director of 

personnel, must establish the following: (1) the employee 

is physically or mentally incapacitated for the performance 

of service any [sic]; * * * (2) that the incapacitation is a 

natural and proximate result of an accident or 

accidents; * * * (3) such accident or accidents occurred 

while [the employee was] in the performance of duty; 

(4) the disability was not caused by the employee’s willful 

negligence or misconduct; (5) the disability is not the 

result of age or length of service; (6) the employee should 

be retired; and (7) the definite time, place, and conditions 

of the duty that resulted in the employee’s disability.” 

Prew, 139 A.3d at 564 (internal quotation marks omitted). 

Section 17-189(f) states that, once the Board determines that an applicant is disabled, 

then the Board “shall retire the said member * * *.” We have held that that clause 

is “mandatory, not discretionary in nature,” meaning that “once the employee has 

established that he or she qualifies for accidental-disability retirement, the board is 
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not vested with discretion to deny the application.” Trinidad, 206 A.3d at 705 

(internal quotation marks omitted). 

 In this Court’s opinion in Morse, 139 A.3d at 385, in the course of holding 

that § 17-189(f) does not require unanimity of the three independent medical 

examiners, we made the following statement which is pertinent to the instant case: 

“If two independent medical examiners, plus the 

member’s treating physicians, opine that the member is 

disabled, and one physician disagrees, it is certainly 

reasonable to conclude that the evidence is that the 

member is disabled. Of course, the board has the authority, 

indeed the obligation, to review the opinions of each of 

those physicians and determine why there is a 

disagreement. The board certainly has the ability to 

determine that the one dissenting physician is more 

persuasive than the others, but that decision must be based 

on a reasoned analysis of the evidence before the board.” 

Morse, 139 A.3d at 393 (emphasis added). 

 Thus, we have been clear that the Board may rely on the evaluation of one 

independent medical examiner so long as its decision is based on a reasoned analysis 

of the evidence. In the opinion of this Court, after a thorough review of the record 

and the arguments of the parties before this Court, that is precisely what the Board 

did in the instant case. The Board made findings of fact, including specifically 

discussing each of the independent medical examinations undergone by Mr. 

Starnino. It then quoted from the applicable ordinance before concluding that legally 

competent evidence did not establish that Mr. Starnino was incapacitated from the 

performance of his duty and that he should be retired as required by the ordinance. 
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The Board proceeded to rely heavily on the evaluation of Dr. Lifrak, in which he 

opined that he thought Mr. Starnino could work full duty, even though the FCE 

report had reached a contrary conclusion. It is true that Dr. Lifrak noted that the 

FCE found to the contrary and that, therefore, Mr. Starnino was incapacitated. 

However, the Board was within its discretion to choose to discount the FCE, 

especially in view of the length of time that had passed since that evaluation had 

been performed, and to give more credence to Dr. Lifrak’s opinion as to whether or 

not Mr. Starnino could return to full duty and as to the subjective nature of Mr. 

Starnino’s complaints. It is certainly not the case, as Mr. Starnino would have us 

believe, that all of the independent medical examiners in this case found that he was 

incapacitated; rather, our review of the record discloses that the views of the three 

independent medical examiners and Dr. Gastel were substantially more divergent 

from one another. 

 What is more, our standard of review provides that we need look only for 

some or any evidence to support the Board’s decision. See Trinidad, 206 A.3d at 

704; see also Foster-Glocester Regional School Committee, 854 A.2d at 1012 

(“Legally competent evidence is defined as such relevant evidence that a reasonable 

mind might accept as adequate to support a conclusion, and means an amount more 

than a scintilla but less than a preponderance.”) (internal quotation marks omitted). 

Certainly, Dr. Lifrak’s statement that he thought Mr. Starnino could return to full 
- 14 - 

duty constitutes some evidence in support of the Board’s decision. As such, we need 

go no further—we will not disturb the Board’s decision. See Trinidad, 206 A.3d at 

704; see also Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 533 

(R.I. 2011) (“The issue * * * is not what ruling a member of this Court might have 

made if he or she were confronted with the motion [at issue] at the trial court level[;] 

[t]he only issue properly before us is whether the hearing justice abused her 

discretion in ruling as she did * * *.”) (emphasis in original); State v. Gillespie, 960 

A.2d 969, 980 (R.I. 2008) (“[W]e may uphold a trial justice’s ruling even if we 

would have ruled differently had we been in the trial justice’s position.”). 

Lastly, we note that, in our view, this case has substantial similarities to what 

was at issue in the recent case of Trinidad v. Employees’ Retirement System of 

Providence, 206 A.3d 700 (R.I. 2019). In that case, the Board relied upon the 

conclusion of one of the independent medical examiners—Dr. Arnold-Peter C. 

Weiss—in determining that the applicant in that case was not entitled to an 

accidental disability retirement, despite the fact that the reports of the other two 

independent medical examiners seemed to weigh in the opposite direction. Trinidad, 

206 A.3d at 702-06. We held that “Dr. Weiss’s evaluation constituted legally 

competent evidence supporting the board’s decision denying Trinidad accidentaldisability retirement benefits.” Id. at 706. Thus, in Trinidad, we looked to the 

existence of any legally competent evidence to support the Board’s decision and 
- 15 - 

affirmed because some such evidence was present in the record; that is precisely the 

scenario with which we are currently confronted, and our holding in this case is 

entirely consistent with our holding in Trinidad. Id. at 705-06. 

Accordingly, in our judgment, the Board relied on legally competent 

evidence, namely the evaluation of Mr. Starnino conducted by Dr. Lifrak, in 

reaching its conclusion that Mr. Starnino was not entitled to an accidental disability 

retirement. As such, we affirm the Board’s decision. See id. at 704. 

IV

Conclusion 

Accordingly, we affirm the decision of the Board. We remand the record to 

that tribunal. 

Justice Goldberg, Justice Lynch Prata, and Justice Long did not participate. 

Justice Flaherty participated in the decision but retired prior to its publication.

Justice Flaherty, dissenting. I respectfully dissent from the holding of the 

majority in this case. I do so because I am convinced that the petitioner, Jared 

Starnino, has presented medical evidence that demands a conclusion that, some two 

years after he was injured, he remained physically unable to perform his job as a 

firefighter and that his disability was the natural and probable result of the injury 
- 16 - 

that he sustained during the course of his duties on August 3, 2015. It is my further 

opinion that, conversely, there was no competent evidence to the contrary. Thus, I 

conclude that the decision of the board should be quashed. 

As the majority has explained, petitioner was examined by three orthopedic 

surgeons of the board’s choosing in connection with his application for 

accidental-disability retirement benefits. Each of the doctors performed an 

independent medical examination at the behest of the board, and each was aware that 

Mr. Starnino had begun his treatment with physical therapy, but that lack of progress 

eventually had caused his treating physician, Jonathan A. Gastel, M.D., to perform 

surgery in the form of an arthroscopy with SLAP tear repair, a partial thickness 

rotator cuff tear repair, and an anterior capsulorrhaphy on petitioner’s right shoulder. 

The first of those independent medical examiners was A. Louis Mariorenzi, 

M.D., who examined petitioner on May 30, 2017. Doctor Mariorenzi opined in his 

IME report that “[petitioner] is partially disabled, unable to return to his employment 

as a firefighter.” It was Dr. Mariorenzi’s recommendation that Mr. Starnino be 

considered to be partially disabled. 

The next independent medical examiner was Michael P. Bradley, M.D., who 

examined petitioner on June 26, 2017. Doctor Bradley opined that “without further 

surgery” petitioner had “reached maximum medical improvement” and that, “under 

his current course of treatment,” the examiner did “not think he could continue” 
- 17 - 

working as a firefighter “[u]nless further surgery is considered[.]” Doctor Bradley 

further indicated on the questionnaire attached to his report that petitioner was 

physically incapacitated from the performance of his employment duties, and he 

stated to a “medical degree of certainty that without further surgery he would not be 

able to return to his job and current duty requirements as a rescue technician.”1 

Joseph T. Lifrak, M.D., a third orthopedic surgeon, examined petitioner on 

behalf of the board on August 15, 2017. Although Dr. Lifrak felt personally that 

petitioner “can work full duty, the functional capacity evaluation is contrary to this 

and based on the functional capacity evaluation, the patient cannot work full duty 

without being injurious to his health.” Doctor Lifrak stated his opinions to a 

reasonable degree of medical certainty. However, in the face of three opinions by 

the three doctors chosen by the board, asserting that petitioner was disabled and 

could no longer perform his job as a firefighter, the board nonetheless denied his 

accidental-disability retirement pension. 

The majority has concisely, and correctly, set forth the appropriate standard 

of review, and it cannot be argued that that standard is daunting. The majority has 

also correctly and accurately cited this Court’s decision in Morse v. Employees 

Retirement System of City of Providence, 139 A.3d 385 (R.I. 2016). In Morse, we 

 

1

 When he testified before the board in support of his application, petitioner said that 

he declined further surgery because his treating physician had informed him that 

additional surgery could make his condition worse.
- 18 - 

rejected the pension board’s unofficial “unanimity rule” and held that there was no 

requirement that the physicians conducting independent medical examinations be 

unanimous in their opinions and findings of disability. See Morse, 139 A.3d at 393-

94. It is also true that, in rejecting the board’s unanimity rule, we opined that the 

board might be free to conclude that a single dissenting doctor’s opinion was more 

persuasive than the conclusions reached by the other medical examiners. Id. at 393. 

We cautioned, however, that such a conclusion “must be based on a reasoned 

analysis of the evidence before the board.” Id. 

It is here that I find fault with the decision of the board and depart from the 

reasoning of the majority. First, it troubles me greatly that the hearing transcript 

reveals that the board seemed determined to find a way to deny petitioner’s 

accidental-disability retirement pension instead of impartially weighing the evidence 

before it.2 “When an administrative agency carries out a quasi-judicial function, it 

 

2

 For instance, the board members remarked during the hearing: 

“CHAIRMAN * * *: And Doctor, whatever documents 

you need, if you could try to find the needle in the haystack 

with this. 

“* * * 

“[BOARD MEMBER]: I—I personally believe and—and 

it kills me to say this because he’s one of our—our 

members, but I—I think he’s gaming the system and I 

think that we have evidence here to—to deny.” 
- 19 - 

has an obligation of impartiality on par with that of judges.” Champlin’s Realty 

Associates v. Tikoian, 989 A.2d 427, 443 (R.I. 2010). Under the Fourteenth 

Amendment to the United States Constitution, “administrative tribunals must not be 

‘biased or otherwise indisposed from rendering a fair and impartial decision.’” Id.

(quoting Davis v. Wood, 444 A.2d 190, 192 (R.I. 1982)). Several comments made 

by board members on the record can lead to no other conclusion but that the board 

was hostile to petitioner’s claim for accidental-disability retirement benefits and that 

the board members were looking for evidence that would support their intuition that 

he was “gaming” the system.3

 

3

 Further comments made by board members during the hearing included: 

“CHAIRMAN * * *: So, let me just say what my thoughts 

are and then we can do whatever you want to do. Right off 

the bat and he’s evasive? I—I—I would tend to lean 

towards Doctor Mariorenzi. Doctor Lifrak, in the sense 

that something’s not right here, if I can say it that way. 

* * * 

“[BOARD MEMBER]: I’m—I was just curious—

because, you know, he was a cop for a year, that’s—that’s 

pretty physical. * * * You know, you could chase 

somebody and tackle them. We have no records of that. 

You know, maybe at that particular time, if he did 

anything like that, he may not have felt anything, but it 

could have been brought on later. * * * 

“CHAIRMAN * * *: Right and I’m wondering if there’s 

an MRI from before he got injured somewhere out there. I 

mean—I know, like I said, that needle in a haystack[.]” 
- 20 - 

Other than petitioner’s statement that he was unable to recall the name of the 

walk-in emergency room he had visited thirteen or fourteen years earlier to treat an 

injury he had received playing basketball while he was in college, there was utterly 

no evidence that petitioner had kept any information from the board. In addition, he 

stated unequivocally that his treatment for that injury consisted of an examination 

and advice that he take aspirin or ibuprofen until his pain subsided. Moreover, it 

cannot be gainsaid that petitioner was subjected to a thorough physical examination 

before he was appointed to the Cranston Police Department and then to the 

Providence Fire Department. He also successfully completed a physically rigorous 

police academy and then an equally demanding fire academy without difficulty, and 

it is undisputed that he worked for several years as a firefighter with responsibilities 

that included being a rescue technician without incident or evidence of injury. 

In its decision, the board dwelled on the fact that the examining physicians 

did not say exactly the same thing. That is true and is to be expected. However, 

there was no dispute among them that petitioner’s injury arose during the course of 

his employment and that he was, at the time of each examination, unable to perform 

the duties of a firefighter. 

In rationalizing the denial of petitioner’s application, the board and the 

majority focus with particularity on the reports of Dr. Lifrak and Dr. Mariorenzi. 

Doctor Lifrak’s report is admittedly a bit confusing. Although he had no difficultly 
- 21 - 

in connecting petitioner’s injury to a work incident, he found subjective complaints 

only and opined that petitioner could return to work as a firefighter. However, when 

noting the very specific results of the functional capacity evaluation (FCE), 

especially as those findings related to the precise duties of a firefighter, he reversed 

course and said that, to a reasonable degree of medical certainty, “the functional 

capacity evaluation is contrary to this and based on the functional capacity 

evaluation, the patient cannot work full duty without being injurious to his health. * 

* * Based on the functional capacity evaluation, the patient would have the 

restrictions as outlined above in the functional capacity evaluation report.” 

My reading of Dr. Lifrak’s report leads me to the inevitable conclusion that 

the examining physician determined that the FCE report’s focused testing relating 

to the everyday duties of a firefighter caused him to adjust his personal opinions, 

given the exquisite detail in the FCE, and resulted in his adopting the restrictions set 

forth in that report. Thus, his conclusion was that petitioner was not able to perform 

the work of a firefighter. 

In my opinion, the equivocation in Dr. Lifrak’s report should have spurred the 

board, at the very least, to seek a clarification from Dr. Lifrak. Instead, the board 

seems to have treated the correspondence from the physician as two reports: one 

personal in nature that found no disability and one based upon the FCE concluding 

that there was disability. The board then disregarded that part of Dr. Lifrak’s report 
- 22 - 

that it found to be advantageous to the application. Indeed, the transcript of the 

board’s executive session on January 24, 2018, reveals an intention to seek 

clarification, but the board ultimately did not do so. 

Finally, I am troubled by the report of the third examining physician, Dr. 

Mariorenzi. Doctor Mariorenzi found petitioner to be cooperative and he also made 

a finding that there was “some restricted motion to his right shoulder.” Doctor 

Mariorenzi opined that, due to the restricted motion in his shoulder, petitioner was 

unable to return to his duties as a firefighter. However, the doctor then said that, 

based upon the medical records and his condition, petitioner probably would be able 

to return to his duties within the next two years. 

Placing aside the undeniably speculative nature of such a statement, it is my 

opinion that the board’s consideration of Dr. Mariorenzi’s discussion as to 

petitioner’s future condition was inappropriate and in error. 

The retirement ordinance, Section 17-189(f) of the Providence Code of 

Ordinances, states clearly that, once the board determines that an applicant is 

disabled, the board “shall retire the said member[.]” Thus, the ordinance does not 

provide the elasticity to consider what the condition of an applicant might be at some 

future point. The board must make its decision solely on the evidence when it 
- 23 - 

considers the application. We have said that such action by the board is mandatory.4

See Trinidad v. Employees’ Retirement System of Providence, 206 A.3d 700, 705 

(R.I. 2019) (concluding that once an “employee has established that he or she 

qualifies for accidental-disability retirement, the board is not vested with discretion 

to deny the application”) (quoting Prew v. Employee Retirement System of City of 

Providence, 139 A.3d 556, 563-64 (R.I. 2016)). 

Finally, it is my opinion that the board undercut petitioner’s disability 

retirement claim by referring to an injury that petitioner received while he was in 

college more than a decade before he sustained the undeniably work-related injury 

to his shoulder. The ordinance provides no room for such an exclusion. The 

ordinance says that an injury may be discounted only if it is “the result of willful 

negligence or misconduct on the part of said member[.]” No such evidence was 

presented to the board. To the contrary, all the physicians who examined petitioner 

agreed that he had suffered a disabling injury that occurred during the course of his 

duties. 

In my dissent in Trinidad, cited supra, I expressed my appreciation for the 

efforts of the retirement board to rein in some of the more generous, if not abusive, 

pension decisions of the past. At the same time, however, it was my opinion in that 

 

4

 In its decision, the board said that it discounted the FCE because it was nearly two 

years old. However, the FCE was performed on September 28, 2016, and Dr. 

Lifrak’s exam was performed less than a year later, on August 5, 2017. 
- 24 - 

case, as it is here, that each applicant has the right to have his or her particular 

application weighed on its individual merits, consistent with the strict requirements 

of the ordinance. Trinidad, 206 A.3d at 708. Thus, the board should not be looking 

for a “needle in the haystack” as it considers whether an application has merit.5 

Therefore, I respectfully dissent from the holding of the majority in this case 

and would remand this case to the board to seek clarification from Dr. Lifrak with 

respect to the ambiguities in his report as to whether or not it is his opinion, after 

considering the FCE, that the petitioner was disabled as a result of a work-related 

injury at the time of his examination. 

 

5

 In Prew v. Employee Retirement System of City of Providence, 139 A.3d 556 (R.I. 

2016), we held firmly that ordinances like the one at issue here, are remedial in 

nature and that any ambiguities should be construed liberally and in favor of the 

employee so that the purpose of the ordinance might be carried out. See Prew, 139 

A.3d at 563. Such ordinances are designed to provide a more generous pension 

benefit to those employees who are injured in the course of their employment and 

are unable to return to their jobs because of disability. See id. 
SU-CMS-02A (revised June 2020)

STATE OF RHODE ISLAND 

SUPREME COURT – CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case Jared Starnino v. Employees’ Retirement System of 

the City of Providence.

Case Number No. 2018-233-M.P.

Date Opinion Filed February 5, 2021

Justices Suttell, C.J., Flaherty, and Robinson, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Retirement Board of the Employee Retirement System 

of the City of Providence

Judicial Officer from Lower Court N/A

Attorney(s) on Appeal

For Petitioner:

Angelo R. Simone, Esq.

For Respondent:

Megan K. DiSanto, Esq.

Kenneth B. Chiavarini, Esq.

Monsurat O. Ottun, Esq.